House of Commons - Interpreting and translation services and the Applied Language Solutions contract

Interpreting and translation services and the Applied Language Solutions contract - Justice Committee Contents

7 Future priorities

162. In assessing the extent to which the Framework Agreement was operating effectively the Minister focused on the fact that the NAO's investigation had concluded that the MoJ should fully implement the contract: "If the contract was not good, if there was no confidence in it, then surely the National Audit Office would have said leave it".[293] Nevertheless, she conceded that despite the improvements described in the previous chapter the MoJ continued to have some concerns about performance in certain geographical areas, certain jurisdictions with certain languages, and she recognised there was no room at all for any complacency. She explained that Capita's priorities were to: devise a new assessment; recruit more interpreters; and to develop career progression within the tiers; as well as to work with the Department to implement the recommendations of the National Audit Office, which also included completing checks on interpreters and the commissioning of an independent assessment of whether the new quality standards are appropriate. She further acknowledged that to get the contract operating to the standard the Department would like to see would require working "creatively and carefully and cleverly".[294] In this chapter we consider each of these areas and draw our own conclusions about the ongoing priorities for the MoJ and Capita TI.

Further recruitment of interpreters

163. Ms van Loo described what ALS was doing to further improve fulfilment rates by attracting new interpreters based on the information it had collated on the languages required and locations where they are required:

"We have a recruitment plan in place, which we are executing at the moment, which involves building relationships with awarding bodies and universities. We also work with the criminal justice organisations and ask for their support in terms of the interpreters that were working previously within the system. They may contact those interpreters and ask if they would be interested to work for us, so that is another opportunity for us. That has been very successful."[295]

In the week commencing 5^th November 2012, 20 new interpreters were recruited.[296]

164. We are surprised that there is no absolute target of numbers of interpreters for the supplier database. Before the MoJ seeks to rollout the operation of the agreement fully to the Crown Prosecution Service it must ensure that Capita TI has determined a defined minimum necessary to deliver that work. We also consider it necessary for the MoJ to undertake or commission some work to establish more clearly the requirements of the CPS than was done in respect of HMCTS.

The absence of assessments

165. The MoJ described the backlog in assessments as "challenging" to resolve because of difficulties between ALS and its independent contractors in marking assessments, and the lack of qualifications to benchmark against for some of the rarer languages.[297]

166. As we concluded our inquiry Capita TI and MoJ were in the process of agreeing a new approach to assessment as they conceded that the one in the contract was not feasible. Capita's proposal is for an interview based approach to the verification of interpreters' experience within the criminal justice sector, followed by an induction process, including a work shadowing assignment, and adherence to the code of conduct.[298] The MoJ gave Capita considerable time to make alternative arrangements for assessment. We support the new approach planned for assessing interpreters provided that Capita TI ensures that any quality assurance elements that underpin it are appropriately tight and rigorously monitored.

Developing career progression

167. Capita is required under the Framework Agreement to ensure that those on its supplier list have access to continuous professional development. This was not compulsory under the previous arrangements but membership of a professional body usually comes with the expectation that an individual will actively maintain and update their skills; this can be time consuming and costly.[299] In evidence to our inquiry on the budget and structure of the Department ALS made the following reference to its approach to quality assurance: "Assigning qualified and experienced linguists to assignments and insisting on continuous professional development, while reducing operational inefficiencies, remains our focus. We are determined to get the service running at a level that meets the MoJ's requirements, provides transparency of opportunity for linguists and fully supports the justice sector."[300] Other than a reference to familiarisation training by the NAO, we received little evidence on how Capita is satisfying this requirement. When we asked Capita for further information on this matter they explained that criminal justice workshops had been introduced for interpreters already familiar with the criminal justice system, and who have previously undertaken work in the sector, for example, those who had been working for the police but not in courts.[301] We heard that this constituted very basic training delivered by someone without experience of legal training.[302] It appears that no work was under way to provide access to professional development until recently. As we concluded our inquiry we learned that Capita had recently "engaged an industry expert" in identifying and preparing training for interpreters, and we heard that some training needs had been identified through the workshops described above.[303] We are dissatisfied that Capita TI has failed to provide for those on its supplier list a proper programme of professional development almost one year after it began operating under the Framework Agreement.

Completing monitoring checks

168. There was apparent uncertainty in our evidence as to whether the aim of the contract was merely to act as a booking system or to provide a quality of service, which would include monitoring the quality of interpreting and managing regulatory aspects as well as the logistics. Mr Parker attempted to explain to us Capita's role in quality assurance:

"We are responsible for the quality of the interpreter that attends. As part of this, what we can't actually warrant is what happens when the interpreter is in court. If we then received issues from that court about the quality, we would investigate, and, as has happened in some cases, the ultimate sanction would be to remove the interpreter from the available list" and "…all we are doing is matching someone's qualification against the tiering that was agreed, [with the MoJ], at the time of the contract."[304]

169. Since the NAO highlighted numerous difficulties with ALS' own approach to quality assurance, and the MoJ's initial failure to provide sufficient arrangements for independent monitoring, there is now regular monitoring by MoJ. For example, the MoJ is now routinely inspecting Capita's register of interpreters and the work it has done to check qualifications and tiering. Mr Handcock suggested that this gave "a very high degree of assurance about the people on their books and the people that they are supplying. That wasn't the case in the beginning, but we have put that right."[305] As we noted above Capita also assured us that its investment had enabled it to rectify inadequate processes and procedures. The Minister hoped that Capita TI would be delivering against its performance indicators by March 2013, the end of the financial year.[306]

170. Nevertheless, Ms Lee and respondents to our e-consultation, among others, continued to express doubt that the criteria for qualifications at the appropriate tiers had been met and verified.[307] These concerns may well have justification. On 24^th October 2012, the MoJ audited a sample of 30 interpreters registered with Capita TI; one-third of the sample required further documentation to prove their qualifications at the appropriate tier and one did not have appropriate security checks.[308] Since the oral evidence hearing took place, on 1 November, Capita TI sent emails to some workers registered with it, asking them to provide proof.

171. It is clear that the contractual terms regarding the appropriate qualifications and CRB checks for those servicing the contract continue to have been flagrantly disregarded until very recently. We are dismayed that a contractor should apply such an apparently lackadaisical approach to verifying qualifications and executing appropriate vetting. While there have been improvements these have taken a very long time to achieve, even with the considerable performance improvement resources at Capita's disposal. We are concerned that the Ministry of Justice has so recently found evidence that questions persist as to whether interpreters on the supply list are meeting appropriate quality requirements in terms of having properly verified qualifications and experience as defined under the tiered system. We are not yet satisfied that there are sufficient safeguards currently in place to ensure that only suitably qualified interpreters are providing services to HMCTS.

172. We welcome the Department's efforts to quality assure the work of Capita-ALS in implementing the Framework Agreement, but we believe that, in the absence of an independent regulator, this mechanism should have been in place from the start and we are concerned that regular monthly checks continue to be necessary some nine months or so into the operation of the contract. The Ministry of Justice has shown ALS, and subsequently Capita TI, considerable leeway in not rescinding the contract despite ongoing breaches of their obligations under the Framework Agreement, and has presumably had to devote more resources than expected to close monitoring of the contract. We ask the Ministry of Justice in its response to this report to provide us with an estimate of the administrative costs of providing such a considerable level of oversight of the contract.

Enduring concerns about quality standards

173. While it is probable that the poor quality of services provided stemmed partly from a failure on behalf of ALS to put effective systems in place to underpin its delivery under the Framework Agreement, the evidence indicates that there are more fundamental problems within the new arrangements which could have a more enduring detrimental impact on interpreting in the justice sector. We consider these concerns from the perspective of the judiciary, magistracy, legal professionals and the interpreter community below.

REGAINING THE CONFIDENCE OF THE JUDICIARY, MAGISTRACY AND LEGAL PROFESSIONALS

174. The Magistrates' Association and the Law Society were in agreement that the service continues to require improvement with regard to the quality of interpreters provided.[309] Mr Fassenfelt was clear that the existing arrangements did not give magistrates confidence:

"If [confidence] starts to leak away, as officers of the court, we will have serious concerns in the future about interpreting services […] [The Magistrates' Association] feel[s] that for magistrates to gain that trust and confidence there needs to be some form of divide between the [regulatory and service provision functions] […] There needs to be independent monitoring of the contract. I do not see that happening now. I see the provider—the contractor—doing the monitoring. To me, that does not give the confidence that we need as a magistracy."[310]

The Senior Presiding Judge believed that the quality of ALS interpreters remained variable, and that this was continuing to cause disruption to court proceedings, and meant that the general view of tribunals was that arrangements were not yet as reliable as the old arrangements.[311] These fears were similarly expressed by other stakeholders. Annette Elder of Elder Rahimi Solicitors, who specialise in immigration and asylum, said: "we are returning to a situation of unskilled and inexperienced interpreters being used which is simply unacceptable and shameful in the context of particularly asylum and human rights protection cases."[312] The Minister felt that the higher fulfilment rates and lower complaint rates should be sufficient to restore confidence.[313]

175. At the time of the MoJ's initial memorandum we heard that there were remaining issues for frontline staff and the judiciary which the Department was seeking to resolve with Capita-ALS. We asked for clarification of the nature of these matters and were told that together they were reviewing quality standards and seeking to attract additional qualified interpreters to the work.[314] The MoJ has also been working to improve internal processes, for example, relating to financial assurance and guidance on complaints and compensation, and to produce more detailed guidance on appropriate use of interpreters, presumably related to the tiering system.[315] We also heard from the Senior Presiding Judge that there were two judicial representatives on the HMCTS project board which is working to manage the contract.[316]

176. Capita explained that there was a continuous process of improvement, underpinned by ongoing dialogue with MoJ and its customers:

"We continue to work closely with the courts, and, actually, where we have worked very closely with the courts, such as City of Westminster, we are now at 99.5% fulfilment. So we believe the contract is improving all the time. Are there certain things that we'd like to change? We talk to the Ministry of Justice all the time about that, about things both ways, about where we think improvements could be made, but until our customer tells us otherwise we will continue to deliver the service."[317]

177. Notwithstanding the progress that has been made, we consider that the Ministry of Justice and Capita TI have much hard work ahead of them to restore the trust of sentencers and the legal profession. We recommend that the MoJ considers negotiating with Capita TI to replace the distance indicator with an indicator of quality, for example, a user satisfaction measure.

Ongoing inadequacies in the complaints mechanism

178. We received criticisms about the absence of an effective accessible complaints mechanism, and were told of instances in which there had been no feedback on complaints that had been made to the MoJ about poor service provision.[318] For example, one of our witnesses, Matthew Scott, a barrister practising in criminal law, explained that he had made a complaint directly to the MoJ but had received no response.[319]

179. Mr Atkinson of the Law Society considered that an alternative mechanism for complaints would be very helpful. He explained:

"It would give some evidence base and alleviate some of the difficulties that we have experienced in giving our evidence, which has been primarily anecdotally based. We would then have a proper basis for looking at and analysing the problems, including the problems for those providing the service. It would allow us to look at whether there are geographical differences in the problems and at the numbers. If there were somewhere that lawyers could complain to, whose specific function was to receive those complaints, it would encourage them to believe that there was a reason to make a complaint, with the hope that that would lead to some improvement. If there were a direct service for them to report to, I think it would also lead to a higher level of reporting of problems."[320]

180. Mr Handcock considered that the existing system was sufficient in that professional stakeholders could complain through the MoJ:

You have to bear in mind that Capita are our contractors and we don't think it would represent an appropriate standard of service to people who use the courts for us to invite them to pursue their own complaints with our contractors. We think that's our responsibility. We think it's our responsibility too, because when someone has a complaint about the provision of a service around a court hearing there may be any number of explanations for that and it might not be a Capita issue. We need to know that people are raising those complaints, first of all, so that we can ensure that it isn't some part of the court process that has caused the problem and, secondly, to ensure, for example, that if an interpreter has been found to be inadequate we know that as well. But, where that complaint is made by a legal professional, we will then put that complaint on to the complaints system.[321]

In subsequent written evidence the MoJ committed to including the legal profession in its revised communications strategy and ensuring that they are aware of the best route for raising concerns with HMCTS.[322]

181. As complaints can only be submitted by those with access to the online portal there is no publicised mechanism for solicitors and barristers to register problems with interpreters supplied by ALS; this also denies end users of interpreting services, including defendants and witnesses, and members of the public, the right of complaint. Those professional stakeholders who do not have access to the online portal are not sufficiently aware that there is an alternative route for complaints directly to the MoJ. We recommend that the MoJ establish a dedicated phone number for registering complaints about interpreter services for those stakeholders who do not have access to the portal, and publicise the existence of this complaint route. Data on the number of complaints received by this route, and the proportion of such complaints that are fed through to the portal, should be published alongside statistics on complaints made directly through the portal itself.

REGAINING THE CONFIDENCE OF PROFESSIONAL INTERPRETERS

182. Many witnesses from the interpreter community feared that the combination of the tiered system and the reduced levels of pay would have a sustained detrimental impact on the interpreter pool. It was evident from our discussions that there remain fundamental concerns about: the assessment process; remuneration; quality standards; a lack of independent regulation; a lack of transparency regarding control mechanisms; and the sustainability of professional interpreting in the justice sector. The Minister, Helen Grant MP acknowledged that it was "very, very important" for the Ministry to seek to build a "very good and close" relationship with the interpreter community to enable them to "move forward constructively together" and she agreed to do "whatever we can to make that happen".[323] We welcome the Minister's willingness to engage in discussion with the interpreter community and we will monitor the outcome of these discussions.

183. We were told that interpreters would continue to be reluctant to work until both standards and pay issues had been resolved. There is certainly convincing evidence that the sustainability of the system may be threatened. For example, the system was intended to improve the level of continuous professional development, yet some witnesses expressed concerns that reductions in pay would be likely to have the opposite effect as they would reduce interpreters' incentive to undertake training and development.[324] The University Council of Modern Languages counselled that the arrangements had the potential to create an enduring diminution of quality as in the future interpreters were unlikely to go to the expense of training to a high level if it is not requisite of employment in the justice sector.[325] Indeed we were informed that there had been a "dramatic fall" in the take-up of the Diploma in Public Service Interpreting in the last year.[326]

184. When we asked our witnesses representing professional bodies and the national register what could be done to recover the situation, they concurred that in their view the Framework Agreement was "unsalvageable".[327] Mr Rosenthal explained this from ITI's perspective:

"In our professional view, as a professional body, the framework agreement as it stands is unsalvageable. I think it contains many false premises. The bottom line is that, under this framework agreement, existing professional qualifications have been ignored. The rates of pay that are offered under it are so low that qualified professionals are no longer able or willing to continue working in the court system. There are so many different concerns about it that we must recognise that the framework agreement as it stands is part of the problem and must be replaced by something better."[328]

185. One of the most fundamental concerns expressed to us by NRPSI and PIJ was that they regarded the functions for which Capita-ALS was responsible—work provider; supplier; regulator; assessor of qualifications and competence; registrar of suitably qualified and competent interpreters, and disciplinarian—as fundamentally conflicting; in their view this enabled ALS to dictate recruitment, pay, price, quality and other factors, preventing fair competition and disadvantaging other existing and new suppliers.[329] Furthermore Mr Sangster told us he believed that the resulting lack of independence in the monitoring of quality, competence and qualifications, and dealing with complaints potentially provided an opportunity for the contractor to "cloud, fudge, miss or ignore some or all of these issues" and consequently made it more difficult for the MoJ to monitor the effectiveness of the delivery of the service.[330] In his view the Framework Agreement therefore needed to be "revisited and stripped apart".[331] Ms Lee stated that she believed that the disciplinary function and the regulatory function, in particular, were not appropriate functions for a commercial agency and that these should be exercised independently, by independent bodies.[332] PIJ went as far as to propose that the previous system be reintroduced, while a feasible alternative was developed in proper consultation with interpreters' organisations and the NRPSI.[333]

186. One example of a potential problem relating to the disciplinary function is that professional witnesses are called upon to review interpreting when quality or accuracy has been questioned; where a reviewing interpreter is reliant for work on the same agency that engaged the professional interpreter whose work is subject to review, there may be perceived pressure not to provide a negative report as this could impact on future work opportunities.[334] Another example of the potential problems of ALS being self-regulating related to the complaints system which we discussed in the previous chapter. Ms Lee told us:

The professional institutes have codes of ethics and disciplinary frameworks and procedures in place. Those disciplinary frameworks include an appeals procedure. The full framework and procedure is published; it is transparent, and all parties know what to expect. Moreover, anybody is in a position to make a complaint to those professional bodies. With the new regime, under Applied Language Solutions/Capita, as far as we are aware and have been able to ascertain, there is no facility for anybody who is not a court employee to put in a complaint. The only channel for complaints is through the online portal.[335]

187. Not surprisingly Capita TI did not agree that the contract was unsalvageable. Ms van Loo told us that she saw the various functions Capita provided as complementary.[336] The Minister similarly rejected this notion as the National Audit Office's investigation had concluded that the Department had very good reason to change the original contract and that the new arrangements should be fully implemented: "If interpreting organisations are saying it's unsalvageable and it is not good, then I am a little bit mystified now."[337]

188. Our witnesses representing the professional interpreter community and the national register also suggested that there must be a separation of some of the functions currently undertaken by the contractor. For example, Mr Sangster wished to see "an independent registrar to vet and approve the qualifications of interpreters employed under the FWA, and to deal effectively and impartially with complaints."[338] One interpreter drew parallels with the Office of the Immigration Services Commissioner for immigration advisors or the Financial Services Authority for those providing mortgage and financial services.[339]

189. When we put these suggestions to the MoJ they stated:

"the Framework Agreement requires all interpreters to be qualified dependent on the tier. These qualifications are obtained independent of Capita/ALS from recognised educational institutes, examining boards or regulatory bodies. The customer and its stakeholders are a key element of overseeing the services. If the customer (MoJ, ACPO etc) is not content with the quality and skills of an interpreter then they can remove them from the register. However, interpreting and translation services cover many sectors and there would be many issues in regulating interpreters and translators. Whilst we have not given full consideration to the possibility of an independent regulator and arbitrator, the NAO recommendations were for the contract to be implemented fully with independent advice on the quality assessment to be obtained. We are working to implement these recommendations with Capita and the interpreting community, as well as other justice sector partners."[340]

190. The failure of Capita-ALS to implement appropriate safeguards until, following the National Audit Office recommendations, they were required to do so by the Ministry of Justice, has reinforced the concerns of the interpreter community about the fact that the service provider is responsible for almost all functions. It has certainly taken some time, and the impetus of the NAO's investigation, followed by more rigorous monitoring by the MoJ, to highlight exactly where the problems lie and to see real progress in performance.

191. Our evidence suggests that the most important priority for the MoJ is to establish whether the strengthening of quality assurance arrangements, and other work that has been done to remedy other problems, are sufficient to improve the quality of interpreting services provided to HMCTS under the Framework Agreement. We share the National Audit Office's concern that the existing safeguards of quality within the system may not be fit for purpose; if this is not addressed it is likely that the confidence of important stakeholders, including the judiciary, magistracy and legal professionals, will continue to be undermined, and that many professional interpreters will continue to be reluctant to provide their services. We support the National Audit Office's recommendation that these standards should be independently reviewed and look forward to seeing the results of that assessment.

192. Our evidence suggests that the concerns of many members of the interpreter community will not be dispelled by insipid and general responses from the MoJ on such issues as remuneration, and rebuilding trust, for example. It is likely that concrete safeguards will need to be negotiated, for example, following the independent review of the tiered system of qualifications proposed by the NAO, a proposal that we also endorse. The language used by the Minister in describing the path that the MoJ must take to move forward, appears to illustrate the Department's acceptance that the Framework Agreement requires some renegotiation, albeit through careful and creative cooperation with Capita TI. The Ministry and Capita TI must prove that the Framework Agreement is capable of attracting, retaining and deploying an adequate number of qualified and competent interpreters to meet the requirements of the courts and other agencies. This will also require the professional interpreter community to work flexibly with the Department in seeking to find an acceptable way to restore their services to the justice sector. It is essential that this is achieved before fully extending the reach of the contract to other justice agencies.

193. We believe that ultimately there should be a regulation system that is independently organised to select and classify interpreters for the appropriate level of court and tribunal work, assuming that some form of tiering remains in place following the review, and ensure that they are held accountable for delivering to the standard required. In the meantime it is important that the functions of Capita TI in delivering quality assurance are clarified, and if necessary, further strengthened. In addition we consider that there is a strong case for a further review of rates of remuneration and modelling of the potential impact of increasing these rates, particularly for highly qualified interpreters, on registration rates.

The European Directive

194. The National Agreement complies with Articles 5 and 6 of the European Convention on Human Rights (ECHR) i.e. the right to be informed in a language one understands of the reasons for arrest and the right to a fair trial incorporating the right to have the free assistance of an interpreter.[341] PIJ and NRPSI expressed concern that under the Framework Agreement, the UK might be in breach of the requirements of EU Directive on the right to interpreting and translation during the criminal justice process [Directive 2010/64/EU] which must be transposed into domestic law by 27 October 2013.[342] In particular their concerns related to the ability to adhere to Articles 2, 3 and 5 of the Directive, which ensure that interpreting and translation is of a quality sufficient to safeguard the fairness of the proceedings and that a register or registers of independent translators and interpreters who are appropriately qualified is established. This view was supported by Fair Trials International, barrister Matthew Scott, the European Legal Interpreters and Translation Association (EULITA), whose members include ITI and ACPI, and the International Association of Conference Interpreters.[343]

195. The NRPSI—which is already recognised by the European Commission as an independent register and voluntary regulator—proposed that, in order for the UK to comply, the Framework Agreement would have to be amended to the effect that face-to-face interpreters should be registered with NRPSI.[344] The Minister told us that she was "quite satisfied" that the current contract met the standard that will be required under the EU directive.[345]

196. The transposition into UK law later this year of EU Directive [2010/64/EU] on the right to interpreting and translation during the criminal justice process will prove a timely test of the appropriateness and robustness of quality safeguards embedded in the Framework Agreement and the efforts that have been made to strengthen them in the light of the reports of the National Audit Office and two parliamentary select committees.

293 Q 216 Back

294 Q 208 Back

295 Q 126 Back

296 Ev 64 Back

297 Ev 30 Back

298 Ev 64 Back

299 Ev w82, Ev 38 Back

300 HC (2012-13) 97-II, Ev 171 Back

301 Ev 64 Back

302 Ev w3; see also Ev w17 Back

303 Ev 64 Back

304 Qq 164, 167 Back